THE QUEEN v. CHENG KAM MING

No. 657 of 1987

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HEADNOTE

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Criminal law and procedure – Dangerous Goods Ordinance Cap. 295 – knowledge of nture of goods stored a matter of strict liability.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 657 OF 1987

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J U D G M E N T

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1. The appellant was convicted after trial of an offence brought under section 6 of the Dangerous Goods Ordinance, Cap 295 in that he did store a quantity in excess of 50 kilogrammes of Sodium Hydrosulphide without a valid licence.

2. On the 16th July 1986 a fire broke, out in an industrial buidling in Kowloon which was designated as a No. 5 alarm fire before being eventually put out the following day. During the course of fire-fighting 158 metal drums of sodium hydrosulphide were found on the 8th floor of the building. Sodium hydrosulphide is a Category 9 dangerous good as it has a propensity to produce heat and sulphur dioxide when coming into contact with water and on the day of the fire flooding had occurred on the 8th floor as a result of a burst water pipe.

3. The 8th floor was occupied in its entirety by United Textiles Limited, a company which had ceased active business but various materials and machinary had been left in the premises. The appellant, who as the son of the two directors of the Company, was looking after the premises while his parents were overseas.

4. The learned trial magistrate found that the appellant had a custodial relationship to the premises, he knew that the goods in question were kept there and that his custodial relationship extended to the dangerous goods in the premises. No issue is taken with these findings of fact. In his statement of findings the magistrate went on to say as follows:-

"I came firmly to the conclusion that section 6 created an offence of strict liability. That is to say, once the prosecution had proved (i) that the appellant had one or other of the proprietary roles with regard to the goods, and (ii) that he knew or must have known (i.e. inferentially it was inconceivable that he did not know) of the existence of the goods there, the offence has been made out: the appellant's belief or ignorance or even absent-mindedness as to the nature of the goods was irrelevant.

To view the matter otherwise, it seemed to me, would make the Dangerous Goods Ordinance very difficult to enforce and would not sufficiently protect the public interest."

5. The finding that the Crown did not have to prove knowledge as to the nature of the goods constitutes the only ground of appeal and Mr Yu, Counsel for the appellant has argued that the principal clearly stated in Sweet v. Parsley[1] that mens rea is an essential ingredient of every offence and the court ought not to hold that an offence is an absolute offence unless that appears to have been the intention of Parliament applies to this case. He contended that section 6 contains no implication in its wording that knowledge need not be proved and the word "store" and the extensions to that word contained in the Ordinance should imply knowledge of what is “stored” and the mental element of the offence must therefore be proved by the prosecution.

6. One of the leading authorities is the decision of the Privy Council in Gammon Ltd. v. A.G. of Hong Kong[2] in which Lord Scarman stated the following propositions:-

"(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence

(2) the presumption is particularly strong where the offence is "truly criminal" in character

(3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute

(4) the. only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern and public safety is such an issue

(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

The Crown urge me to find that the latter two propositions apply to the storage of dangerous goods and that once it has been proved that a person has goods in his possession or custody and that he knows of their existence the question of whether or not he knew of the nature of those goods is a matter of strict liability. Mr Yu sought to draw a distinction between the "Gammon" case and the facts of this case by stressing that the Privy Council had held that it was unnecessary for the prosecution to prove in an offence charged under section 40 of the Buildings Ordinance that a defendant knowingly deviated in a material way from the approved plans. He argues that the materiality of a deviation is an intangible, knowledge of which would be extremely difficult to prove whereas, in this case, knowledge of the nature of dangerous goods is quite a different thing and is capable of being established.

While there may be distinguishing features nevertheless the Dangerous Goods Ordinance is clearly intende1 to secure public safety and, as such, falls within the ambit of those statues being considered in the Gammon Case. Because of its particular concern with the safety of persons threatened by the consequences of dangerous goods being stored in buildings I am satisfied that the intention of the legislature was to displace the .normal presumption that mens rea must be proved in relation to the storage of dangerous goods.

Section 6 of the Dangerous Goods Ordinance is, in my view, an outstanding example of the final proposition stated by Lord Scarman that the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective in promoting the objects of the statute by encouraging greater vigilance. This is so because it places a duty on a person who has a custodial relationship to goods being stored and knew of their existence to ascertain the nature of those goods and whether or not they are classified as dangerous. A duty which, quite clearly, will serve to promote greater vigilance thereby preventing the mischief which the Ordinance is designed to eradicate.

I fully agree, therefore, with the learned magistrate's findings when he found that "the appellant's belief or ignorance or even absent-mindedness as to the nature of the goods was irrelevant."

7. The appeal against conviction is accordingly dismissed.